Cohabitation – how much of the property is yours?

Cohabitation is a complex area of law. Often we find that clients have misconceptions about how they own a property with an ex-partner. Many assume that any document which was signed at the point of purchasing the property is largely irrelevant if they have since informally changed the arrangements of ownership e.g. if one person pays the mortgage in its entirety each month or if one person has solely contributed towards significant renovation to the property.

If you signed an agreement either at the time of purchasing the property or subsequently, in most cases this agreement will be conclusive in determining how you and your partner/ex-partner own it i.e. equally or unequally. Similarly, if you moved into a property which is solely owned by your partner and either at the start of cohabitation or during it, you signed an agreement which sets out the interests (or non-interest) of the parties, then this will also be conclusive evidence. It will be rare, in cases where agreements have been signed, for the court to order that the ownership is different.

If no agreement has been signed, it is at this stage that the court will look at how the parties intended to own the property. For example, did they intend to live in the house as a family home together equally? Did they both contribute towards the outgoings to the house? If the court cannot determine the common intention of the parties, they will then look at whether any intention could be inferred. If such an intention cannot be inferred, following recent cases such as Stack v Dowden [2007]and Jones v Kernott [2011] the court can look at imputing an intention between the parties i.e. based upon the conduct of the parties, what would be a fair share?

More recently, the court has taken an even greater leap forward in relation to cohabitation cases and will quantify beneficial interest to take into account any lack of child maintenance payments. In the case of Capehorn v Harris [2015] the parties did not have an express declaration setting out how the joint ownership should be shared between the parties. Based upon the lack of child maintenance payments made by the claimant and the renovation work paid by the defendant after the parties’ separation, the court imputed an intention that the parties owned the property as to 85% to the defendant and 15% to the claimant.

In light of recent cases and the ongoing changes to cohabitation law, it is even more important for unmarried couples to enter into a clear and express written cohabitation agreement. At Hunter & Uro Solicitors, we are highly experienced in advising and drafting agreements for cohabitees. If you require any further information or a free 30 minute consultation, please contact us on 0207 177 9777 or 01234 889777. Serving Bedford and London, our lawyers can help you with your family law and divorce matters.